Cahill, the lottery, and the demands of democracy

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Timothy Cahill avoided the axe when a jury was unable to agree on Attorney General Martha Coakley’s charge that the now-former state treasurer engaged in corruption when he used state lottery advertising dollars for his own political ends. While the promotional ads did not mention Cahill’s name, in reality they were meant to promote his quixotic and foundering gubernatorial campaign. So went Coakley’s theory.

Cahill’s critics (and Coakley’s supporters) admit, as the Globe put it in a recent editorial (“Cahill gets a mistrial, but tough law still warranted,” Dec. 13th), that “it’s certainly true that the line between self-promotion and the outright diversion of resources can be hard to find in politics.” Yet they conclude that because Cahill spent $1.5 million of lottery promotional funds to tout his own management of the lottery while he was a candidate for higher office, he crossed that hard-to-find line.

Taking a step back, however, there’s the other side of the story: Democracy surely demands (not just allows) that government officials inform the public of how they have fulfilled their official duties. When the Republican Governor’s Association attacked Cahill’s management of the lottery and hence the lottery itself, the treasurer had not only a right, but a duty to defend the lottery and his own performance. For one thing, public confidence in the lottery is essential for its success. For another, Cahill owed it to the voting public to make the case that he was doing a good job managing it, particularly since he was standing for reelection to an even higher state office.

But, say the critics and prosecutors: Cahill should have used privately-raised campaign funds, rather than lottery-allocated promotional funds, to tout his management. This criticism ignores the fact that the ads Cahill ordered in his official capacity as treasurer did not promote his campaign by name. Rather, they defended the lottery as an institution from those who would impugn its reputation in an effort to torpedo Cahill’s gubernatorial bid. If Cahill was doing his job, then the lottery was in good shape and worthy of confidence by the taxpayers, the gamblers, and the voters. If that public confidence redounded to Cahill’s political advantage, it did so because of Cahill’s proficient management of the lottery.

Doesn’t this give incumbents an electoral advantage? ask the critics. Yes, of course. But that is merely one example of the myriad advantages of incumbency. It is the reason that the voters return incumbents to elected positions far more often than they elect challengers. As Attorney Charles Rankin successfully argued to the jury on behalf of Cahill’s campaign manager and co-defendant Scott Campbell, who was acquitted the day before the jury was declared deadlocked on Cahill, President Barack Obama flew to New Jersey on Air Force One, with a substantial Secret Service retinue, to appear with New Jersey Governor Chris Christie and assure that state’s citizens (and, of course, voters – it was six days before the presidential election) that the Obama administration was doing all it could to provide emergency relief. That trip entailed a substantial expenditure of public funds for an arguably political purpose.

But Obama was no more guilty than Cahill of mixing the political and the public purposes of his tax-payer funded outreach. In a democracy, the voters judge an incumbent who stands for re-election on the basis of performance. The official’s informing function is a requirement of office in a democracy. If an incumbent has an advantage in spreading the message of competence and accomplishment that is not available to a challenger – well, has anybody ever denied that there are advantages to incumbency? The mayor of Boston, after all, has his name on plaques marbled throughout the city. Likewise, we learn who the governor of a state is every time we cross a state border on a turnpike.

Coakley presented evidence at Cahill’s trial that he discussed with the lottery’s advertising agency the timing and content of the ads so as to maximize his own political advantage. Cahill, like Obama, was engaged at the time in an effort to persuade the public that he deserved another turn in office. The statute itself, unhelpfully, purports to outlaw a public official’s “attempt to use [his] official position to secure” for himself “unwarranted privileges or exemptions which are of substantial value and which are not properly available” to others. If the legislation was intended to criminalize a public official’s right — indeed, obligation— to inform the public of how he is carrying out his duties, such a radical restriction of the official’s informing duty, assuming it would be constitutional, surely must be clearer than this.

Cahill should never have been indicted — and not just because it is a violation of due process of law to criminally charge a defendant where the application of the statute to his conduct is vague. Cahill actually had an affirmative duty to inform the voting public of how he was running the lottery. The jury, as happens with surprising frequency, had a better sense than either the attorney general or the news media of what a democracy requires of its elected officials.

Harvey Silverglate, a Boston criminal defense and civil liberties lawyer, is the author of “Three Felonies a Day: How the Feds Target the Innocent.’’

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